REBA’S “Unnauthorized Practice of Law” Case Heading to the SJC

In welcome news for REBA members and lawyers across Massachusetts, the First Circuit yesterday reversed the US District Court’s decision against REBA, setting aside a $1M award of fees and certifying the case to the SJC to determine whether NREIS is engaged in the illegal practice of law.

“We are pleased that the Court recognized some of the flaws and inconsistencies in the lower court’s reasoning,” said REBA President and MEEB’s own Tom Moriarty. “We look forward to the opportunity to make our case at the SJC.”

No party bringing suit should fear that its nonfrivolous advocacy of a reasonable position in Federal Court will, on that basis alone, lead to an injunction and declaration against it based on the dormant Commerce Clause. Much less should the party be made, based on its conduct in bringing such a suit, to fear the imposition of attorney’s fees. (p. 31)

Federal law recognizes that the state have “an especially great” interest in regulating the practice of law. (p. 16)

The right to petition the courts for redress implicates the First Amendment right of free speech and the right to petition the government. These principles have long standing in our constitutional jurisprudence, and they include the right to file lawsuits that are not baseless. (p. 27)

[I]t is especially appropriate to certify this question to the SJC because whether NREIS’s various activities here constitute the unauthorized practice of law raises serious policy concerns regarding the practice of law that will certainly impact on future cases. Such policy judgments are best left to the SJC, which is responsible for defining the practice of law in Massachusetts.

REBA is grateful to its many allies in this struggle, particularly the MBA and the BBA which filed amicus briefs in this case.